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tv   Constitutionality of Health Care Law  CSPAN  March 25, 2012 4:19pm-6:00pm EDT

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we think it is distinct. you have to analyze the mandate as the mandate. we will take the position that when you look at this act, it is not a simple matter of saying it is a mandate. look at the way the mandate -- it is the driving force between all the health insurance. how're they going to do that? when you look at the people that are out there, there's a part of peace that to the response to every group. for the people already qualified for medicaid, those people, even if they have not enrolled, they assume medicaid will take care of that. they force them to enroll. as the people between the current enrollment limit, medicaid will take care of those people. between 133% of the poverty level, there are subsidies and
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the health-insurance market that the statute creates. for people above that level, it is the employer mandates that the care of them. it is hard to say -- if you take away the driver 10 -- >> there is still the 10th amendment argument. there is some tension there. >> there is some tension there. it is on both sides. byis the judge's reaction the number of times he read in the brief how essential the individual mandate was to the rest of the statute. >> your position is if the mandate tells it all fails. suppose the government says if the mandate fails, the only thing that needs to -- is the preexisting guaranteed. that you could limit it. that is where they would limit
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and say the rest stance. would you take the position that if you're going to fund the mandate, you could do that. ? there is no other provision that must bell as a matter of constitutional law if the mandate fails. >> we take the position that the secondary matter, that the government has got itself pregnant on the health care reform. i think they are right. you cannot separate the individual mandate from the guaranteed issue. i do not think it is any different for the other provisions, the medicaid reform, the employer mandate, and the health exchanges. all of those are equally tied. >> you do not think the issue is more tied and then a number of others? >> i do not. i think they are tied together. they are reforms. they are reforms. >> we are about to run out of time. i want you to speak about
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medicaid expansion in just a moment. the supreme court created the coercion doctrine. as far as i can tell, it is still viable lot. it is on the books. every circuit save one, the fourth circuit, the rest of the circuits seem to ignore the cores and doctored. it is a pretty powerful argument that you have on this medicaid expansion. >> a couple of things, a chief justice. i think it is true. there are a lot of circuits to seem to deem coercion -- despite what the court has said. if you want to look at those cases and the pathology of how the circuits got to the wrong answer, i think it is because a lot of them started with the d.c. circuit case that was decided before dole. the court picked up that
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language and the ninth circuit picked up on that even though it was after dole. of course there is no limits on spending power. under garcia, there are no limits on the -- >> accepting with you that the doctrine of coercion is alive and well, it is abundantly clear that it is, there is holding that applies and rejects the doctrine in that case. what you can help me with is its application to the circumstances of this case. the supreme court teaches us that there is a difference between into spent on the one hand and coercion on the other. why is this provision coercive?
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>> a special when you couple with that that every single state can opt out if they choose state can opt out if they choose to opt out. >> in theory, but not in fact. it is telling that 26 states do not like the conditions. none of them have pulled out. it is unthinkable. there are two reasons why this is the case that crosses the line. the sheer volume of the federal money as they combine with the fact that the money that is tied to these conditions is not limited to the new money or the new conditions. the best illustration of that is the maintenance of effort provision. that tells the states then anything they voluntarily did anything they voluntarily did before, they can not change until a point in the future. it is a backward looking
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provision. it ties into what they did in the past. we should be focused on the preexisting pool of money. they condition the whole thing on that one department. here is the second thing. the biggest problem on the commerce clause is the lack of a limit in principle. when we make that argument, we do not have a limiting principle. i think there is a limiting principle. principle. i think you can strike this case down as unduly coercive. the key is the relationship between the medicaid conditional program and the individual mandate. no other spending condition i am aware of is tied as this to a mandate. i want to be clear about this. there is no plan be in the statute. there is no alternative for how the individual mandate is going to be satisfied for individuals
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above and below the poverty level other than medicaid. we know congress wants to force a mandate on the demand side. on the supply side, the only way the statute supplies anything to those people is a conditional medicaid program. the only reason congress can overcome the disconnect between having a mandate and a condition on supply is the statute knew the states did not have a choice. >> let me ask the question differently. as i understand the thrust of the argument, uncle sam pays between 50% and 80% of all of the medicaid expenses that all of the states consume. the difference is the nature of the service provided. what the government has said is,
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if he do not comply with the expansion of to 133%, you are out. we will not give you a dime. that is coercive because the amount of money is so large, larger than any other course in case. the question i have is, congress did something else, too. it seems to have removed some of the sting from the argument. they said, we mandate you cover everybody up to 133%. but we're going to pay for it ourselves. for the first three years. we will bear all 100% of the cost. in 2017, we will bear 95%.
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in 2020, we will bury 90% of all the costs forever so that the actual cost in terms of your money tends not to be quite so great given that the federal government has assumed all of the cost or virtually all of the cost. dozen that remove some of the course of bite? >> no. this is the critical thing. part of what is critical for the spending clause argument is that they have not limited the new conditions to new money. if of congress did was cover people between 100% of the poverty level, we will give me a whole bunch of money, we would not be here saying that was coercive. the problem is the people who are already eligible. what happens to those people? right now, there are a lot of
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people who are eligible for medicaid benefits but are currently enrolled. -- not enrolled. those people will be forced into medicaid by the individual mandate. that is the reason that states have independent standing to object to the mandate. the individual mandate makes the maintenance of the medicaid program for people who are currently eligible vastly more expensive. to give you an idea of the magnitude, this is an expert -- excerpt. the state of florida estimates the state of florida estimates that that people, people already eligible but not enrolled, it will cost the states $574 million. that is the impact for which there is no new money. to make matters worse, that is
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why this maintenance provision is so pernicious. the rational reaction of any state would be to say, whoa. we are going to get all these new people. let's modify our program so we can reduce the cost of servicing all these people. that is what the maintenance provision tells them they cannot do. they cannot change the level of benefits. the individual mandates forces these people want to them. they were eligible, but there were not enrolled. but now federal law tells them they must. that imposes a huge cost. it is enough to create a spending clause problem. >> let me ask you one final question. you have gone over your time. because we have vast to these questions. with respect to the question that judge hall has asked
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concerning sever ability, i want to flip around the conventional theme. if the mandate was if the mandate was constitutional, but were beyond congress's spending power, with those provisions be tied together at the hip or would they be separate? >> i was a separate but i would concede that the argument is not as strong. individual mandate is the center of the wheel. all of these various provisions for how the individual mandate is satisfied are the spokes. if you got rid of one of the spokes, like the medicaid expansion, the hub would come
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down/ . . if you take that out, the spokes come with that. >> to you agree that it hardly matters whether it's you have -- there are plaintiffs to do. the states to not have to. it makes no real difference. we do not have to answer the academic question if whether the states can carry this forward. it does not matter here. doesn't matter to you? >> i want to agree with the general on this by saying i do not think it matters. the only way my matter is for the scope of the injunction. i am looking forward to a day when there is that injunction. i see that is a good thing. there is an argument that you might want to say that everybody has -- for the reason i just
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explained, the argument that states have a standing is not that difficult. because of the individual mandate -- >> i want you to make the -- does that matter? does that matter? >> the only way i could see is the way an injunction is written. you could probably right around that and not have to decide the issue. >> back to the effects, the same question, is that in the commerce clause or in both? >> i do not know that my answer is much different on that. i would be happy to live in a world where justice scalia's opinion was the law of the land. as the general said, justice scalia is so clear about that. it is necessary and proper. he is trying to correct the -- >> can you get at it?
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can you articulate that doctrine? ordeal have to bring in the necessary clause. that is my question. >> i find it difficult to explain why it is the federal government as to regulate substantial effects without relying on the necessary cause. >> that is what i thought. it is hard to know what is going on. >> we are going to take a 15 minute recess. minute recess. >> i would like to start by answering the main question this morning. are we regulating health insurance for the payment. it is undisputed that it is only
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regulation of health insurance that is going on. you have to pay a penalty if you do not buy health insurance. they impose a penalty without regard if you see a doctor or failed to pay the doctor. the government says one of our reasons is to make sure that doctors are paid when they provide service. that is true as well. it does not matter. they are using an improper means to beneficially affect health care service. congress made explicit findings that violence against women caused billions of dollars. the court said that is a permissible goal. it is the same we're dealing with the dead. but you used improper means. you are not regulating commerce. you are not regulating commerce. here ty are regulating the
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economicecision to stay out of the the commerce. the other point is there is a subset of the people we are regulating. they do go to the doctor and they do not pay the doctor. that is commerce-affecting activity. that is negative. it is irrelevant. it does not matter whether the classification happens to encompass people that they could have regulated. if that were true, lopez would have been decided differently. at least 90% of the people had the guns near the school. they got them through interstate commerce. a huge subset of the people being regulated could have been regulated under a proper commerce law. whether they had gone through interstate. the court did not say it does not matter if it is over broad
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and improper. they said you cannot capture things that are not commce. congress has not given the power to beneficially affect commerce. congress -- >> let me tell you whyopez does not give you very far. there was a single statute. congress put in the interstate nexus. the law was upheld. you follow me? lopez does not help you at all. let's go to morrison. what part of lopez has anything to do with this case? to do with this case? how could it possibly help you? >> the thesis of the government is this, if we over regulate, as long as a subset of the people we to regulate engaged in commerce, it is ok. my point is that a very
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substantial subset of the people reguted in the lopez la were engaged in commerce. >> that is the same thing here. health insurance is in interstate commerce. >> it is not buying insurance. >> howdy is described not buying insurance as inactivity? >> i am hpy with your characterization. let's call it an economic decision. myecision is to not buy insurance. the government is compelling need to make a decision i do not want to make. by their on finding it is a disadvantage to me. the congress's expressed findings was that the mandate would lower insurance premiums. by5%. the only way my insurance
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company can lower everybody else's is if i have made a bad deal. what really the government is telling you is because some some said -- subset of the group, these people.e >> do you agree if i'm going to the hospital, i have to buy insurance? >> that is a point i would like to focus on. that is right. >> they could do that. you agree. >> yes. >> can you do it in advance or must you do it at the time of consumption? so it is now a temporal issue. >> let's think about the temporal issue. every 22 year-old is going to enter the job market. ther is all kind of restrictions you can impose on
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employees to contribute to pension. pension. the only difference between law requiring employees to contribute to 401k's and college students is temporal. the real difference is the employees have entered the labor market than the students have not. if you give congress the power to regulate people who are not in the market, you give them the power to regulate everything. lopez told us that things affecting congress as too broad, now we're talking about things that -- >> why isn't everyone in the health-care market because of the uniqueness of health care? >> i would like to make two points. that is a factual distinction. this is a smoke and mirrors attempt to create a principle.
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the judiciary cannot tell congress if they have the power to regulate purchases. definition, as the government points out, those policy decisions are given substantial deference by the judiciary. what difference does it make if it is unique? >> the judge's question is e difference is we are faced with a real argument, not an insubstantial one that there is this parade of hypothetical problems at the doorstep. if you do this, they can do that. to which the answer that the question is suggesting is not so fast. if this is really different and unique, then you have nothing
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more than a holding. you take the next case at the next time in the crucible of the next set of facts. if it is not unique, if what is common dominates over what is disparate, that may be a very geane to the thrust of the argument that two out swept the door open and limited power. i would suggest to you that whether or not this market is unique is an important part of the calculus. en though it requires you look at the economic reality. >> i have two points. even if it is unique, that is for congress to decide. if the have the power to do it, they do nohave to limit themselves. number two, let's examine the next case. let's see how unique this is.
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but they say it is unique because you have to enter the market. >> is it different from life insurance? flood insurance? >> it is not different from flood insurance for anybody who lives near water. and taxes and death are inevitable. we know everyone will eventually die. any time you fail to pay a service provider for a good or service, you are shifting costs. >> that is true insofar as it goes. the additional point is it is not just the youth have cost shifting. the market is unique because unlike a whole bunch of others,
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virtually everyone will find themselves in the unfortunate position of having to consume health care services. while other people might have to consume food and shelter, they do not involve cost shifting in the same way because here we know the hospital and providers will not andannot turn away someone knocking at the door wi a stroke or a gunshot wound. that is what makes this different. >> there is some moral imperative to provide health care. i agree with that. i cannot believe people tnk there is not the same imperative to feed starving people. the government n require private individuals to provide those kinds of services. they come provide doctors and
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insurance companies to pvide low-cost circumstance -- services. how do we deal with that? we have dealt with it through the spending power. if i constrict one indivual to serve another below cost, i will compensate him because he is serving the public interest out ofhe treasury. congress did not want to do that. instead they constricted my client and others to bring them into subsidized these premiums that they neither need nor want to give this $30 billion a year subsidy to those people. that is not regulation of commerce. that is the now we way we have done it throughout our history. we have required services, but we have compensated them. >> you are making policy
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arguments as opposed to constitutional arguments. >> if i sounded -- >> congress makes those decisions. whether if it is up the outer edge of the commerce clause. >> your honor, when we make the constitutional argument this is not commerce. all i hear is policy arguments. they have to solve the problem. i am sayin you are right. that is not a decision for the court. the only question is whether they are regulating power. compelling people to buy health insurance is not regulating commerce. this will create a huge problem if we allow these people not to pay those doctors. the subsidy they are mandating is $28 billion annually.
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it outstrips any kind of concern they have about unpaid care over -- on their own analysis. at most, for all the reasons you went through, -- >> i do not think you concede the first point. the government suggests thathe limiting principle is that we are regulating economic activity. i know you disagree with that characterization. if economic activity that affects interstate comrcis constitutional. >> that is a truism. they're confusing what is required with what they are regulang. >> we're trying to determine if there regulating economic activity. >> i would say making an economic decision not to engage the activity of purchasing
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health care cannot be economic activity. they try and twisted by saying -- >> is at an economic decision? >> every decision to be inactive, not to buy something, it is an economic decision. if that gives congress the power to regulate, they can tell school boards, we are overriding your decision not to buy this kind of textbook. we are compelling you to buy this kind. the activity we are compelled is economics. purchasing textbooks. guns. the most basic requirements of child care. all these sorts of things we thought were reserved for the state as some kind of limiting principle in terms of what the spheres of influence between state and fudge of government are. >> the collision of the tension
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is not between the national sovereigns and the state postal police power but between the national power and some notion of individual liberty. isn't that really the tension we face on the mandate as opposed to the issue of coercion with the medicaid provision? >> i have two answers. the reason the economic liberty is important -- >> i am not saying it is not important. the nature of the tension that you are arguing is of a different character than the tension the supreme court was troubled about in lopez where was a collision between a national sovereign and the invasion of the state's constitutional power. here we are not concerned about the states police power as that residual clause in terms of
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individual liberty. isn't that the reality we face in regard tthe mande? >> i would respectfully disagree for three reasons. the first is, as we know, congress is limited to certain powers not to protect the states. as these court has said, to protect individual liberty against centralized government. so no, it is at the core what lopez was saying. we do not -- there would b one government with police power. they can only do things that are necessary and proper. here they have taken a new power. they have taken upon themselves the power to compel contracts.
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that cannot be proper because it is not incidental to commerce power. it is not appropriate that as it is not the sort of thing the federal government the -- does. it is what states do. it is at the outermost boundary of the police power and raises the most serious kinds of due process if the state were to compel somebody to buy goods. we know it needs to be within the spirit of the constitution. >> let me go back to my question. the same question i had put to your colleague. have you abandoned the claim that there is a fifth amendment issue and/or a 10th amendment
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issue as well? what we have to focus onhe commerce power issue and that issue alone? >> yes and no. no on the 10th amendment. it references people as well as the state. the state. for other reasons, if congress feeds its power is it is by definition invading the provinces of sovereignty. it is absolutely at the core. close to what thiit is the courts found. it can pre-empted. but it cannot tell us to pass a law or tell us to enforce a law. wh someone enters commerce, congress has little power arbor
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what they can do. they cannot compel them to engage in commerce. the court found this distinction in essential to its necessary finding. >> accepting that as true, you still have to apply that principle to the residual clause in the amendment dealing with the people. a similar kind of analysis ought to be adopted as to the people the supreme court crafted and adopted as to powers reserved to the state. you have to do that. you have to make that analog. you have to make that jump. is there no case out there anywhere that has done that? this would be the first time.
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>> i must respectfully disagree. i think lop and morrison were all about individual liberty. they were not concerned about a law regulating guns. it would not be concerned if they had prohibited violence against women. >> i thought the problem in lopez tt cheap justice rehnquist was dealing with was that the national sovereign had presumed to regulate in a non- economic area. an area dealing with criminal conduct, possession of a gun within 1,000 feet of a school. the fear that animated that opinion was a powerful concern. that national sovereign was invading the state.
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i am not sure you can make the same argument in quite the same way with respect to the individual. i'm not sure i understand how you get around that issue. >> we are on the same page. obviously they are concerned about the federal government about the federal government asserting state like police powers. the court has told us because it denying the federal government is designed to ensure individual liberty. they have said that in every federalism and separation of powers case. the reason is not because of some state legislature in georgia, but that the citizens should be subcted to a regime far away. i do not disagree that the problem was them asserting the police power. i do not think it is much of a
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leap to say the reason they are concerned is because it infringes on individual liberty. i doot believe the notion that it was criminal was what motivated lopez and morrison. i take the supreme court at its word. everything affects economic activity. you can use any means to affect economic activity, you have exceeded the congress' power. that exactly the government is making. we want to benefially affect economic activity down the road. if congress has the power to affect economic activity, it has the power to do anything. violence against women affects economics. guns and commerce affts
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activity. you need to come up with a limit in principle. -- limiting principle. every compeled picture is economic activity. every failure to pay as a cost shifting. it may not be to an insurance company but it shifts to the seller or other consumers. it creates this unprecedented and a historical power to compel people to engage in economic activity even to their disadvantage. it is difficult to understand why they could not eliminate restrictions and lopez. if that does not do it, the regulation argument does. >> in morrison, they severed the provision. there was a regulatory scheme. the supreme court severed a
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narrow provision. i want to speak of that here. i understand whajudge vincent did. the plan to support that position. and some that if it were unconstitutional, why would not be wholly severed as a legal matter? is there any health care provision that must fail? i know there are arguments why it is essential, but are there -- >> it never deals with unconstitutional parallels. >> there is a presumption even without a clause. >> there is a presumption which is weekend if you delete it.
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>> likening not sever the mandate from the rest of the provision? tell me legally why you cannot do that? >> i would like to agree with the government on this point. it is inextricably intertwined with the provision. >> all of them? >> guaranteed issue was the statutory provision. >> pre-existing is what he said. >> the other provisions were the community -- >> how about annual limits? does that fails? >> necessarily it does for the same reason. >> all health-care reforms fail. >> this is a central pt of the act. this is the patient protection
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and affordable care act. >> is that based in anything written in the statute? written in the statute? is there anything in the statute that intertwines the mandates in title 26 or title 42? >> i do not know of anything in the u.s. code is intertwined. >> related or anything. cracks in the findings they said this is -- >> i am in the statute. >> than i am at a loss. i do not know of such a statute. it is not in this act. it is not in any act anywhere as far as i know. the answer is no. the supreme court has told us to look at whether or not congress would have passed the law anyway because the main purpose
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of the law -- >> it is impossible to tell whether they would have done it without the mandate. >> we have better information than we do wit most laws. we know that the house passed a rule that said you cannot change a comma. that was the vote. we know it was almost not passed because of provisions involving abortion in all these other things. that they viewed as essential to getting it through. in a more realistic level, i have never seen a statute so intertwined. the name was to insure sick people. the individual mandate was designed for the expressed purpose of compensatinghe insurance companies for the cost. we are protecting patients on
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the one hand. we are compelling people to come to the individual insurance market. that is the operative assumption which every other part of the act was based on. that the would be affordable insurance out there. when you mandate employers to do it. when you put these taxes on companies. when you set of these health care exchanges. the dominant premise was that there would be affordable insurance out there. without the mandate, without the subsy they are imposing on my client, $30 billion a year, none of this insurance is going to be affordable. congress would have never impose the requirements. >> would they bring healthy people into the market? the extension, your kid a large pool of new consumers, healthy individuals. is that correct?
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is the answer yes? >> yes. >> there are provisions that will aid the insurance cpanies with regard to the insurance pool. >> maybe i did not understand the question. the requirement they can limit cost hertz the insurance companies. the requirement they have to ensure people up to 26 hurts them because they are adding new clients whose health-care expenses they have to pay. it is basically all additional cost. you have to expand your client pool. >> not bigger than the health market reforms. is that what you're saying? >> but the government said we will pick up the tab for a lot of people you do t want to ensure. we're going to expand medicaid. that helps them. it is taking them off the doll.
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congress is trying sang, at this point you cannot afford the individual mandate. we're going to put you on the state one. again that is based on the assumption that there is universal coverage that tries down the insurance clause. they subsidize people for these alth care exchanges. that number was set on the assumption that the health care costs would be driven down by conscripting young people to engage to their detriment which were dry everyone else -- >> healthy people can still buy catastrophic coverage. >> i do not think -- i still think of a 31-year-old as young. they cannot buy a catastrophic insurance. what they call catastrophic is not anyone's normal idea of a
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catastrophic coverage. you have to have the health benefits of the savings act. there needs to be a number of benefits. the deductible includeshe three primary physician visits per year. getting hit by lightning in a serious disease, what most people think of catastrophic. that is not an option available. that is part of the cruel irony of forcing them to buy this plan when it is economically disadvantageous. i see my time is running out. >> we thank you.
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>> thank you. i have four points i would like to start with. the first is that the plaintiffs had made a major concession. the government can regulate to the point of fail. now the only dispute is about timing, the means congress chose. chose. congress has since -- sutantial deference. their solution is to ban the an insured and leave waiting victim's at the door. that is what happens if people do not have money to pay under their system. it is proper for congress not to have to do that. congress is reacting to a real- world problem, a problem worth $43 billion in uncompensated care. they say other solutions exist. as judge marcus points out, if anything, congress's means are
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far more rational. they decided to build the system. >> to say it is a temporal jump does not yield the inevitable conclusion that the jump is not a big deal. you understand? you can make the jump in a lot of different industries. your colleague throughout the question, mr. carvin, i think it is a fair question to ask, i wanted to ask it to you directly. if they can compel this, what purchase could they not compel? >> as i said earlier, we are not arguing that the failure to buy something is what causes the economic activity that congress is regulating. he is looking at the wrong side of the transaction. he is looking at the means and
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saying if you can do that, the failure to buy something, it will always be commerce. that is not what congress said. congress said the status quo was once that was leading to cost shifting. you can imagine a president that forbade the government from forcing the purchase of a good in terms of a substantial commerce clause authority. it would not matter one bit. we're talking about the means. with respect to that, while there may be jumps in timing, in many circumstances this is not one of them. here health insurance is the way that most health care is paid for. 80% comes from non-out of pocket cost. will congress decided to do >> it pays for a 37% of health care.
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medicaid, medicare, many other ways account for 70%. private health insurance pays for 30%. >> of course congress allows medicaid to be part of the solution. my only point is that congress was building on this existing apparatus. it was not a jump in some dramatic step. the incentives and other plans would not work. they knew that if they wanted to get rid of discrimination against those who have pre- existing conditions. the way to do that was to have a minimum coverage provision. there was not another option. they said the massachusetts solution was theay to do it. if you are a truck driver, you have to have insurance.
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that brings me to my second point. about rates and how we were an instant away from the market there. i think that is right. millions of americans need health care. that is what makes this market unique. i take my friends do not disagree. one brief points to the rational decision to sell insurance. his answer here to you was, that was economic. the failure to buy something is not economic. this court dealt with and responded to -- >> they have not enter the stream of commerce gap. >> exactly. this court dealt with that question in maxwell.
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the panel said that child pornography, it was not commercial. it was impossible to think of anything farther away from the commercial. then this court said where congress meant regulates activity, whether economic or not. so long as the ability do so undermines our ability to effectively -- >> that is the majority opinion. >> it is. >> let's go back to the question about making an individual purchase of anything. field for the energy example. consumption is a national problem. it h life affects as well as does health care. everybody csumes energy on
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some level. by then, couldn't you require the purchasef certain types of cars or solar panels? once we go down this road, because there is a a health care problem, we are going to require you to purchase health insurance. >> absolutely not. >> and none of those car, theances, the ca food, you have a right to go in there. if you walk campanulas, you cannot say to give it to me. healthcare is different. it is why his question was correct to say. this is unique. that is what stops the slippery slope. shifting have the cost
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here have here. >> can congress increases by >> can congress increases by passing a lawyer shop provide health care -- and pass a law providing an healthcare? >> on page 25, they say precisely that in responding to it. if you are wored about it, how n you increase your por to the activity? there will be no limits. that is exactly what this judge said in maxwell one. it took courage congress to paint with a factor brush. on page 25, it rejects that. it is up to congress. >> let me ask a question about insurance generally. i agree with you that health
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insurance is unique to the extent that we really cannot predict when someone will need it. i think that it does differentiate health-insurance from other projects such as automobiles and so forth. i am not sure that makes health insurance unique. it isn't that really an aspect of the insurance industry as a whole? flood insurance, fire insurance, home insurance, life insurance, natural disaster insurance, although those pride for eventualities that are known. absolutely. >> how does that make health insurance unique from all the other kinds of insurance? >> there is cost shifting here.
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someone else picks up the tab when you do not have insurance. that is why it is activity to not be insured. congressound specific findings of $1,000 a year to you and me. when they say it seemed unusual to compel the purchase of a good, i think that is a liberty of market. they did not have a president that says -- precedent that says the court can mix and match liberty concerns. >> why not? >> i think they both it dealt with that. did they deal with them in separatelaces.
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>> the reality is that there is a powerful factual different betwee claiming there is some liberty interest to grow marijuana in your backyard in california and telling someone they have to buy a product they do not want to buy life insurance. it is critical. >> dealing with the forced detention of individuals after they served their sentence, the court said that is a due process challenge. we will not consider this with respect to it. i think there is clear guidance from the supreme court. the concerns are off the table. i know they tried to get a lot of rhetorical forest. maybe the aument that violate the attention of ayn rand but
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not the united states. they alsoaid congress had not done anything like this for 220 years. >> is that accurate? >> i do not want to quibble. >> congress has not done anything at all like this and 220 years. i do not know. is that accurate? >> here are some examples we think are close. the order people to have guns and knapsacks. >> it was not specifically pegs. this is just a question of books proper. if i could spend a couple of
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minutes on the conversion. the first point is that even if you think that there is some coercion doctor, this is opposed. >> the supreme court has said there is. this case is not close to the line. did you do not hear a word in theargument about what district court pointed to. >> i do not understand what you just said. it seems to me that the supreme court of the united states says with respect to whether spending and taxing goes too far beyond the constitutional limits, that a limit provide it. it says we have a four part test that we will apply. what is more on top of that, we
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are concerned about the problem of coercion. when it morphs into coercion, that may bring a bell that yields the conclusion that the legislation has gone too far. the federal government sd he will deprive the status of dakota 5% of the money they would otherwise get. but i think it is forceful. maybe it is not. there is a specific statute that says congress reserves the right to "alter, amend, or appeal any provision." states have been on notice.
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congress can change the rule. >> is it your view that all they have to do is to place tax legislation. we are giving you money. we reserve the right to change the terms and conditions and that it can never be the worst? >> that is precisely what they say with respect. they point to the specific statute. he can now change the rules. that is actually happened several times. conagra said the exact same thing it is doing today. you have to coveratients appeared in 1989, pregnant women and children under the age of sex. sa exact threat to the overall brand appeared >> it is not overall relevant to looking at
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overall coercion. -- the same exact a threat to the overall brand. overall relevant to oking at the overall coercion appeared >> it is the same threat the the -- coercion. it is the same threats. statue to 1396c says that if the state is the not meet the education requirement comme the secretary has a good there a long process over exactly what she will do. >> i understand this. i thought that what congress said was you have got to increase your coverage to
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include 133% of the poverty level. in the past, you only had to go up to the poverty level but was 12,000 and change for individual. if you do not do that, we -- the power is there to cut the state's off from a dime from any medicaid coverage at all. what did they fall within the first hundred term or the 33%. -- whether they fall within the first 100% or the 33%. >> it is in the power. you also have lesser remedies available. >> what to be a lesser remedy? >> partial withdrawals of funds as opposed to full. in the west virginia case, it
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said we should wait and let that process play out and see what the secretary does before getting into it. that makes sense. these days do not have to spend a dime for the expansion of medicare costs. >> your suggestion is to wait till another day. >> that is part of the answer. this is not even come close. >> u.s. and counsel for my purposes of the question that congress and the secretary ss to the state of florida by way of example, if you do not to raise the eligibility pool to 133%, if you will not get a dime for medicaid. were cutting out what we did you which amounts to billions you which amounts to billions of dollars.
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would that be coercive? >> you have that statute. this is about eligibility to a program. it is our program. it is our dollars. >> i want to turn back to the enforcement mechanism. the government argues i it is essential to the entire regulation. individuals have a choice. the penalty is $95 to begin with.
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is this correct? >> yes. >> there may look at i'm not going to buy insurance to pay the penalty. there is no interest that accrues. accrues. there is no levy. my question is how is that penalty even more the medical bills? >> i do not think it'll be any different. how can that be so essential to reducing unpaid medical bills?
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it is collectible. it is collectible. >> it'll cost more to pursue the lawsuit. >> we will make sure that the statute ds not say 695. sometimes it can be more or less. >> forost wag adobe $6.90 -- it will be 695. >> this is the appropriate way of enforcing it. it would reduce days that are uninsured by millions and millions. >> the cbo says even with this
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mandate 8 million will be exempt. out of that 8 million, only about 4 million will pay the penalty. that is how it works. >> i'm not sure if that is correct. it is a substantial number. there is no distinction in the wall that is more essential than the difference between a constitutional argument in a policy argument. much about what we heard about today, it they turned out to be policy arguments. and do not think they go to the commerce clause. commerce clause. if they say congress cannot
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regulate, then on the grounds that it is not interstate commerce, i wondered what the limits are in future cases. >> thank you. i want to take this opportunity to thank all of you lawyers. this was very helpful to us. it was a very difficult case. it will certainly affect all of the citizens of our nation. >> here is a look at the line
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now from the supreme court. some people have been waiting since friday in order to get a spot to watch the health care oral arguments. some of the people waiting here have been paid by other people or other organizations to hold a place for them. 50 million people are without insurance. the court has set aside six hours over three days beginning monday to hear arguments. that is the most time the court has devoted to any issue in more than 45 years. we have a special website sets up at questions will be up on our facebook page as well. go to our supreme court page and look for billings on the bottom left-hand side. -- the links on the bottom left- hand side. on march 23, john boehner and nancy pelosi and made some
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closing marks. we will take a look at their remarks now. about 25 minutes. should be looking with pride on this legislation and our work, but it is not so. no, today, we are standing here
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looking at a health care bill that in this body believes is satisfactory. today, we stand amid the wreckage of what was once the respect and honor this house was held in bair fellow citizens. we all know why -- held in by our fellow citizens. we all know why. we have failed to listen to our constituents. when we fail to reflect that will come up we fail ourselves and we felt our country. -- fail our country. look at this bill. ask yourself, do you really believe that if you like the health plan that you have, you can keep the? -- keep it? no, you cannot.
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[shouting] in this economy, with this unemployment, but are desperate need for jobs and economic growth, is this the time to raise taxes, create a bureaucracy, and bird and every job creator in the land? -- and bird and every job creator in the land? the answer is no. can you tell your senior citizens that these cuts in medicare will not limit their access to doctors or further weaken the program instead of strengthening its? no, you cannot. can you tell your constituents with confidence that this bill respects the sanctity of all human life and it will not allow
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for a taxpayer funding of abortions for the first time in 30 years? no, you cannot. look at how this bill was written. can you say it was done openly? would transparency and accountability? without a back room deals and struck behind closed doors? no, you cannot. have you read the bill? have you read the reconciliation bill? have you read the manager's amendment? hell no, you have not. >> order, mr. speaker. >> remember the dignity of the house.
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>> in a few minutes, we will cast some of the most consequential votes that any of us will ever cast in this chamber. the decision we make will affect every man, woman, and child in this nation for generations to come. if we are going to vote for the will of the people, we ought to have the courage to stand before them and announce our vote to one at a time. [applause] i sent a letter to the speaker this week asking that the call of the role be ordered for this vote. madam speaker, i ask you, will
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you in the interest of this comes -- institution grant my request? will you, mr. speaker, i grant my request that we have a call of the role? [inaudible] mr. speaker, will you grant my request that we have a call of the role? >> a record vote is conducted by electronic device unless the speaker directs otherwise. >> will you grant that request? >> the chair will decide at the time the request is made. this is not dead. it. [laughter]
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>> my colleagues, this is the people's house. when we came here, we swore an oath to uphold and abide by the constitution's as representatives of the people. the process is broken. the institution is broken. as a result, this bill is not what the american people need nor what our constituents want. americans are struggling to build a better future for their kids. over the last year, as this legislation became more clear, millions of americans lifted their voices. asking us to slow down, not to try to cram through more than the system can handle, not to spend money we did not have.
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they want us to focus on jobs, not more spending, not more government, and certainly not more taxes. what they see today frightens them. they are frightened because they do not know what comes next. they are disgusted because what they see is one political party closing out another from what should be a national solution. they are angry. they are angry that no matter how they engage in this debate, this body moves forward against their will. shame on us. shame on this body. shame on each and every one of you who substitute your will and your desires above those of your fellow countrymen. [applause]
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around this chamber, looking upon as are the lawgivers. from moses to thomas jefferson. by our actions today, we disgraced their values. we break the ties of history in this chamber. if we break our trust with america. when i handed the speaker of the gavel in 2007, i said this. the is the people's house, moment the majority of forgets it, it starts writing itself a ticket to minority status. [applause] if we pass this bill, there will be no turning back.
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it will be the last straw for the american people. in a democracy, you can only ignore the will of the people for so long and did away with that. if they defy the will of our fellow citizens and pass this bill, we will be held to account by those who have placed us in their trust. we will have shattered those bonds of trust. i beg you, i beg each and every one of you, on both sides of the aisle, do not for their strike at the heart of this country and this institution with arrogance. you will not strike within kennedy. i ask -- with impunity. never let this happen again. it is not too late to begin to restore the bonds of trust with our nation and return to this institution. join me, join me in voting
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against this bill so that we can come together, addressing the challenge of health care in a manner that brings credit to this body and brings credit to the ideals of this nation. most important, that reflects the will of the american people. i yelled back. -- yield back. [applause] [cheering] [applause]
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>> the gentleman from south carolina -- [applause] [cheers and applause] >> the gentleman from south carolina -- >> i yield one minute to the gentlewoman from california. she has brought us to this moment. the speaker of the house, and nancy pelosi. [applause] >> thank you, my colleagues.
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>> the distinguished speaker of the house is recognized. >> i think the gentleman for yielding. it is with great pride that we will make history for our country and progress for the american people. [applause] just think, we will be joining those who established social security, medicare, and now tonight, health care for all americans. [applause] doing so, we will honor the values of our founders. in the declaration of independence, they said that we are endowed by our creator by certain rights.
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life, liberty, and the pursuit of happiness. this legislation will lead to a healthier lives, more liberty to pursue hopes and dreams and happiness for the american people. this is an american proposal that honors the traditions of our country. [applause] we would not be here tonight without the extraordinary leadership and vision of president barack obama. [applause] [applause] we thank him for his unwavering commitment to health care for all americans.
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this began over a year ago under his leadership in the american recovery and reinvestment act. we have significant investments in science, technology, and innovation. for health-care reform. it continued in the president's budget a few months later, a budget which was a statement of national values, which allocated resources that were part of our value system and stabilize our economy, created jobs, lower taxes for the middle class, and reduced the deficit and did so in a way that had pillars of investment, including education and health care reform. health care reform and education equal opportunity for the american people. [applause]
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this legislation tonight to come if i had won the word to describe it, would be -- this legislation tonight -- if i had one word to describe tonight? t -- would be opportunity. we all know, our economy needs something new. i believe this legislation will unleased tremendous power into our economy. , mountain a society and an economy where a person -- imagine a society and an economy where a person could change jobs without losing health insurance. [applause] they could be self-employed or start a small business. imagine an economy where people could follow their passions and their talents without having to worry that their children would not have health insurance.
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if they had a child with diabetes, bipolar, pre-existing medical conditions and their families, that they would be job locked. under this bill, at they would be unleashed. [applause] we all know that the president -- present health-care system is unsustainable. we simply cannot afford it. it does not work for enough people in terms of delivery of service and it is bankrupting the country. the best action that we can take on behalf of america's family budget and on behalf of the federal budget is to pass health care reform. [applause] the best action we could take to
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strengthen medicare and improve care and benefits for our seniors is to pass this legislation tonight. pass health care reform. the best action we can do to create jobs and strengthen our economic security is pass health care reform. [applause] the best action we can take to keep america competitive, it might innovation, unleashed on to the urals. is to pass health care reform. [applause] with this action tonight, would this health care reform, 32 million more americans will have health care insurance. those who have insurance now will be spare of being at the mercy of the health insurance industry with their of see increases in premiums, their rescinding their policies at the time of illness, they're cutting
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off of policies even if you have been fully pending. the list goes on and on about the health care reform. 32 million more people, make it more affordable for the middle class, and insurance company discrimination on pre-existing conditions, improve care and benefits under medicare and extending medicare solvency for almost a decade, creating a healthier america through prevention and innovation, create 4 million jobs in the life of the bill. doing all of that by saving the taxpayer $1.30 trillion. [applause]
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a another speaker, tip o'neill, once said, all public -- all politics is local. when it comes to health care, for all americans, all politics is personal. it is personal for the family to go to me that had to choose between buying groceries and seeing a doctor. it is personal to the family who was refused coverage because their child had a pre-existing condition. no coverage, the child got worse. it is personal for women. being a woman will no longer be a pre-existing medical condition. [applause] it is personal for a senior
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gentleman imad in michigan who told me about to this -- i meant in michigan who told me about his wife who had been bedridden for 16 years. he told me he would did not know how we would be able to pay his medical bills. i saw a grown man cry. he was worried that he might lose his house because of this medical bills. he did not know how he was going to pay them. most of all, and he was too embarrassed to tell his children. how many times have you heard a story like that? it is personal for millions of families who have gone into bankruptcy under the weight of rising health-care costs. a high percentage of the bankruptcy is in our country are caused by medical bills. it is personal for 45,000 americans and who have lost a
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loved one each year because they could not get health insurance. that is why we are proud and humbled today to act with the support of millions of americans who recognize the urgency of passing health care reform. more than 350 organizations representing americans of every age, background, part of the country, to have embraced this legislation. our coalition ranges from a r.p. -- aarp who said the legislation improves attempts to crack down on fraud and waste. "improves efforts to crack down on fraud and waste in medicare, strengthening the program for today and future generations for seniors." the american medical association, the catholic health
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association, the united methodist church, voices of american children. from a to z, they are sending a clear message to members of congress. say yes to health care reform. [applause] we have also reached an historic moment because of the extraordinary leadership and hard work and dedication of all the members of congress. i want to recognize for bringing this bill to the floor today. [applause] i want to acknowledge the staff of the committees and the leadership they have done a remarkable job, dazzling us with their knowledge. i would like to thank my own staff.
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i want to close by saying this, it would not be possible to talk about health care without acknowledging the great leadership of senator edward kennedy. he made health care his life's work. [applause] in a letter to president obama before he passed away, he left a letter to be read after he died, senator kennedy approached that access to health care was the great unfinished business of our society. that is, until today. [applause] after more than a year of debate -- and by the way, the
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legislation that will go forth has over 200 republican amendments. it may not get republican votes, it is bi-partisan in having over 200 republican amendments. [applause] after a year of debate and hearings and calls of millions of americans, we have come to this historic moment. today, we have the opportunity to complete the great unfinished business of their society and pass health insurance reform for all americans. it is a right, and not a privilege. [applause] in that same letter to the president, senator kennedy wrote, at stake are not just the details of policies, but the character of our country.
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americans will look back on this date and honored our commitment to our nation's founders for a commitment to life, liberty, and the pursuit of happiness. we may not have chosen at the time, but the time has chosen us. we have been given this opportunity. social security, medicare, health care for all americans. i urge my colleagues to pass health insurance reform, making history, making progress, and restoring the american dream. thank you. [applause]
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>> here is a look at the supreme court. some sculptures -- the center figure is liberty. on the underside of her art to guardians, order and authority. the supreme court will hear oral arguments on a landmark case tomorrow on the constitutionality of the health care bill. outside the court, some people have been waiting in line since friday in order to get a spot to watch the argument, which starts tomorrow. only a few dozen members of the public are allowed inside. some of the people waiting in line have been paid by individuals or organizations to hold a place for them. as the associated press reports, 50 million people are without insurance in the u.s., and the court has set aside six hours
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over the next three days, starting monday, to hear arguments. that is the most time that the court has devoted in its -- to any issue in more than 45 years. we will be checking on the scene throughout the day today. we are looking back at some of the challenges to the health care law. we also have a special website set up for supreme court related issues with profiles of the justices and the lawyers involved in the arguments. links to a special twitter feet from reporters to cover the court. -- twitter feed from reporters who cover the court. starting tomorrow, we will air same date audio. that will start at about 1:00. we will carry that on our companion network, c-span3. coming up tonight, 6:30, we will be shown before the circuit
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court of appeals of virginia. they dismissed the case against the health care law. the court held that only individuals have a right to challenge the individual mandate for been required to buy insurance, not states. after that, at 9:35, we will have c-span's documentary "the supreme court." on "washington journal tomorrow, and we will have special topics on the health-care law and the supreme court. tomorrow, we start off with an overview of the challenges to the affordable care act. some details of the arguments, including the anti-injunction act for tomorrow morning, and look at the justices on the supreme court and how they compared to those of the past. that will be on "washington journal" tomorrow morning at 7:00. the supreme court hearing oral arguments on the landmark case on the constitutionality of the health care bill.
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we are bringing you some shots from outside the supreme court today. it started out as a cloudy day, but cleared up for those waiting in line. in line. >> we


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